North Dakota Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

North Dakota Regulatory Program

agency: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

action: Final rule; approval of amendment.

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summary: OSM is approving, with certain exceptions and additional

requirements, a proposed amendment to the North Dakota regulatory

program (hereinafter referred to as the ``North Dakota program'') under

the Surface Mining Control and Reclamation Act of 1977 (SMCRA). North

Dakota proposed revisions pertaining to its policy document entitled

``Standards for Evaluation of Revegetation Success and Recommended

Procedures for Pre- and Postmining Vegetation Assessments.'' The

amendment is intended to revise this document to be consistent with the

Federal regulations and to improve operational efficiency.

effective date: July 14, 1995.

for further information contact: Guy Pagett, Telephone: (307) 261-5776.

SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota Program

On December 15, 1980, the Secretary of the Interior conditionally

approved the North Dakota program. General background information on

the North Dakota program, including the Secretary's findings, the

disposition of comments, and the conditions of approval of the North

Dakota program can be found in the December 15, 1980, Federal Register

(45 FR 82214). Subsequent actions concerning North Dakota's program and

program amendments can be found at 30 CFR 934.12, 934.13, 934.15,

934.16, and 934.30.

II. Proposed Amendment

By letter dated February 17, 1994, North Dakota, submitted a

proposed amendment to its program (Amendment No. XX, administrative

record No. ND-U-01) pursuant to SMCRA (30 U.S.C. 1201 et seq.). North

Dakota submitted proposed revisions to its policy document entitled

``Standards for Evaluation of Revegetation Success and Recommended

Procedures for Pre- and Postmining Vegetation Assessments''

(hereinafter, the ``revegetation document'') in response to required

program amendments at 30 CFR 934.16(b) through (i), (w), and (x), and

at its own initiative.

OSM announced receipt of the proposed amendment in the March 14,

1994, Federal Register (49 FR 11744), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. ND-U-05).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on April 13, 1994.

During its review of the amendment, OSM identified concerns

relating to certain provisions of North Dakota's revegetation document.

OSM notified North Dakota of the concerns by letter dated September 9,

1994 (administrative record No. ND-U-10). On September 14, 1994, North

Dakota and OSM, during a telephone conference, discussed certain

provisions of OSM's September 9, 1994, issue letter (administrative

record No. ND-U-13). North Dakota responded in a letter dated December

21, 1994 (administrative record No. ND-U-14), by submitting a revised

amendment and additional explanatory information that addressed the

concerns identified by OSM.

Based upon the revisions to and additional explanatory information

for the proposed program amendment submitted by North Dakota, OSM

reopened the public comment period in the January 19, 1995, Federal

Register (60 FR 3790; administrative record No. ND-U-15). The public

comment period ended on February 3, 1995.

Subsequently, North Dakota requested a meeting with OSM to discuss

it's

[[Page 36214]]

December 21, 1994, revisions that were made in response to OSM's

September 9, 1994, issue letter. OSM and North Dakota met on April 11,

1995 (administrative record No. ND-U-16). Thereafter, by letter dated

May 11, 1995 (administrative record No. ND-U-17), North Dakota

submitted, at its own initiative, additional revisions and explanatory

information to its revegetation success document.

Based upon the revisions to and additional explanatory information

for the proposed program amendment submitted by North Dakota, OSM

reopened the public comment period in the May 23, 1995, Federal

Register (60 FR 27246; administrative record No. ND-U-23). The public

comment period ended on June 7, 1995.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds, with certain exceptions and additional

requirements, that the proposed program amendment submitted by North

Dakota on February 17, 1994, and as revised by it and supplemented with

additional explanatory information on December 21, 1994, is no less

effective than the corresponding Federal regulations. Accordingly, the

Director approves the proposed amendment.

1. General Substantive Revisions to North Dakota's Revegetation

Document

North Dakota proposed revisions to its revegetation document that

are general in nature in that the revisions are made throughout the

document and/or apply to most if not all success standards and sampling

techniques for all land uses. These revisions include (1) reference of

technical documents used and other agencies consulted during

development of the revegetation document, (2) limiting a permittee's

use of revegetation success standards and sampling techniques to those

approved in the revegetation document unless North Dakota and OSM

approval is first obtained on a case-by-case basis, (3) use of U.S.

Natural Resource Conservation Service (NRCS, formerly the Soil

Conservation Service) soil mapping units and productivity indices

whenever possible, rather than soil series, to develop technical

productivity standards, (4) use of North Dakota agricultural annual

county cropland yields to develop a correction factor for climatic

variability, (5) use of a county-wide correction factor in conjunction

with the NRCS yield information to adjust for climatic yield conditions

on land reclaimed for use as cropland or prime farmland, (6) submission

of aerial photos of areas used to develop standards, (7) submission of

maps which identify either the locations of sampling transects or the

sampling areas and number of randomly located sample units per area,

(8) submission of cover data in tabular form showing composition by

species, using absolute cover values with relative cover submitted to

aid in data interpretation, (9) submission of production data by growth

form, and (10) clarification that actual sample means must be used in

formulas that determine sample size when measuring success of

revegetation for bond release.

The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1)

require that standards for success of revegetation and statistically

valid sampling techniques for measuring success of revegetation shall

be selected by the regulatory authority and included in an approved

regulatory program.

Because the proposed revisions identified above clarify and

generally improve North Dakota's revegetation document, the Director

finds that these proposed revisions are no less effective than the

Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1). The

Director approves the proposed revisions.

2. Substantive Revisions to North Dakota's Revegetation Document

Proposed in Response to Required Amendments

a. Chapter II, Section F, countable trees and shrubs. At 30 CFR

934.16(b), OSM required that North Dakota revise its revegetation

document or otherwise amend its program to require that at least 80

percent of the trees and shrubs counted to determine revegetation

success have been in place for at least 60 percent of the 10-year

period of revegetation responsibility (Finding No. 26.a, 57 FR 807,

821, January 9, 1992).

North Dakota proposed to revise Chapter II, Section F, concerning

reclaimed lands developed for use as woodland, to require for fourth-

stage bond release that the permittee demonstrate that 80 percent of

the total number of trees and shrubs planted have been in place for 60

percent of the liability period. In addition, North Dakota recommended

the use of permanent quadrats in each woodland community to document

the time in place requirement and required that the permittee provide

documentation to verify that not more than 20 percent of the number of

trees and shrubs present at year 4 have been replanted.

The Federal regulations at 30 CFR 816.116(b)(3)(ii) and

817.116(b)(3)(ii) require, for areas to be developed for fish and

wildlife habitat, recreation, shelter belts, or forest products, that

at the time of bond release, at least 80 percent of the trees and

shrubs used to determine success shall have been in place for 60

percent of the applicable minimum period of responsibility.

The Director finds that North Dakota's revisions of Chapter II,

Section F, concerning time in place revegetation success standards for

trees and shrubs on land reclaimed for use as woodland, are no less

effective than the Federal regulations at 30 CFR 816.116(b)(3)(ii) and

817.116(b)(3)(ii). The Director approves these proposed revisions and

removes the required amendment at 30 CFR 934.16(b).

b. Chapter II, Sections F and H, ground cover. At 30 CFR 934.16(c),

OSM required that North Dakota revise its revegetation document to

require that evaluations of ground cover success be valid at the 90

percent confidence level (Finding No. 3, 54 FR 10141, 10142, March 10,

1989).

North Dakota proposed to revise Chapter II, Section F, concerning

reclaimed lands developed for use as woodland, to require that ground

cover must be equal to or greater than 90 percent of the approved

standard with 90 percent statistical confidence. North Dakota also

proposed to revise Chapter II, Section H, concerning reclaimed lands

developed for use as fish and wildlife habitat/grassland, to require

that ground cover must be equal to or greater than that of the approved

reference area or standard with 90 percent statistical confidence.

The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)

require that the sampling techniques for measuring success of

revegetation shall use a 90 percent statistical confidence interval

(i.e., one-sided test with a 0.10 alpha error).

The Director finds that North Dakota's revisions of Chapter II,

Sections F and H, concerning the requirement to demonstrate success of

ground cover with 90 percent statistical confidence, are no less

effective than the Federal regulations at 30 CFR 816.116(a)(2) and

817.116(a)(2). The Director approves these proposed revisions and

removes the required amendment at 30 CFR 934.16(c).

c. Chapter II, Sections F and G, woody plant stocking. At 30 CFR

934.16(d), OSM required that North Dakota revise its revegetation

document or otherwise amend its program to require that evaluations of

the success of woody plant stocking be valid at the 90 percent

confidence level (Finding No. 4, 54 FR 10141, 10142, March 10, 1989).

[[Page 36215]]

North Dakota proposed to revise Chapter II, Section F, concerning

reclaimed lands developed for use as woodland, to require that the

number of woody plants must be equal to or greater than the stocking of

live woody plants of the same life form of the approved standard with

90 percent statistical confidence. North Dakota proposed to revise

Chapter II, Section G, concerning reclaimed lands developed for use as

shelterbelts, to require that density and vigor must be equal to or

greater than that of the approved standard. North Dakota did not revise

this section to require that density be demonstrated with 90 percent

statistical confidence. However, Chapter III, Section D, of North

Dakota's revegetation document requires that density of woody

vegetation be measured either by direct count of all vegetation or by

the density quadrat sampling method. North Dakota proposed to revise

Chapter III, Section D, to require that, when using the quadrat

sampling method, enough samples must be taken to demonstrate that the

number of woody plants established equals or exceeds the approved

standard with 90 percent statistical confidence. The methods provided

in Chapter III apply to all demonstrations of woody plant density,

regardless of land use. Therefore, the revegetation document requires,

for land reclaimed for use as shelterbelts, verification of woody plant

density by direct count or by sampling with 90 percent statistical

confidence.

The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)

require that the sampling techniques for measuring success of

revegetation shall use a 90 percent statistical confidence interval

(i.e., one-sided test with a 0.10 alpha error).

The Director finds that North Dakota's revisions of Chapter II,

Section F and Chapter III, Section D, concerning the requirement to

demonstrate success of woody plant density with 90 percent statistical

confidence, are no less effective than the Federal regulations at 30

CFR 816.116(a)(2) and 816.116(a)(2). The Director approves these

proposed revisions and removes the required amendment at 30 CFR

934.16(d).

d. Chapter II, Sections F and H, Revegetation success measurement

period. At 30 CFR 934.16(e), OSM required that North Dakota revise its

revegetation document or otherwise amend its program to require that

revegetation success standards for woodlands and fish and wildlife

habitats be met for at least the last two consecutive years of the

revegetation responsibility period (Finding No. 26.b, 57 FR 807, 822,

January 9, 1992).

North Dakota proposed to revise Chapter II, Sections F and H,

concerning reclaimed lands developed for use as, respectively, (1)

woodland and (2) fish and wildlife habitat using annual crops, to

require that revegetation success must be measured during the last two

years, rather than the final year, of the responsibility period.

The Federal regulations at 30 CFR 816.116(b)(3)(ii) and

817.116(b)(3)(ii) require that trees and shrubs counted in determining

success of revegetation shall have been in place for not less than two

growing seasons.

The Director finds that North Dakota's revisions of Chapter II,

Sections F and H, concerning the requirement to measure revegetation

success during the last two years of the responsibility period, are no

less effective than the Federal regulations at 30 CFR 816.116(b)(3)(ii)

and 817.116(b)(3)(ii). The Director approves these proposed revisions

and removes the required amendment at 30 CFR 934.16(e).

e. Chapter II, Sections F and G, revegetation success standards for

shelterbelts. At 30 CFR 934.16(f), OSM required that North Dakota

revise its revegetation document or otherwise amend its program to

include tree and shrub stocking and vegetative ground cover success

standards for all types of shelterbelts and clarify that trees and

shrubs must meet time-in-place requirements no less than those

established in 30 CFR 816.116(b)(3)(ii) (Finding No. 26.a, 57 FR 807,

821, January 9, 1992). As discussed below, the Director finds that

North Dakota's proposed revisions to Chapter II, Sections F and G,

concerning revegetation success standards for shelterbelts, are no less

effective than the Federal regulations at 30 CFR 816.116(b)(3) and

817.116(b)(3), and removes the required amendment at 30 CFR 934.16(f).

i. Chapter II, Sections F and G, requirements for determining

revegetation success on lands developed for use as shelterbelts. North

Dakota proposed to revise Chapter II, Section F, concerning reclaimed

lands developed for use as woodland, to delete all discussion of

shelterbelts so that Section F is applicable only to woodland.

Requirements for determination of revegetation success on lands

developed for use as shelterbelts are included in Chapter II, Section

G.

North Dakota proposed to revise Chapter II, Section G to define

shelterbelts as a strip or belt of trees or shrubs planted by man in or

adjacent to a field or next to a farmstead, feedlot, or road, and

synonymous with windbreak. North Dakota proposed to add the requirement

that the stocking of trees and shrubs normally follow current standards

and specifications developed by the NRCS for farmstead and field

windbreaks in North Dakota, but also provided for allowance of stocking

standards specified by the State Game and Fish Department or the State

Forest Service.

North Dakota also proposed to revise Section G to specify that,

prior to final bond release, the permittee must demonstrate in the last

two years of the liability period that density and vigor are equal to

or greater than that of the approved standard, erosion is adequately

controlled, and that at least 80 percent of the trees and shrubs have

been in place for at least 60 percent of the liability period. In

addition, North Dakota requires an evaluation of the diversity,

seasonality, and regenerative capacity of the shelterbelt based on the

species stocked and planting arrangements. Regarding the time in place

standard, North Dakota proposed to require that the permittee provide a

worksheet of each shelterbelt which lists annual replantings of each

species and that documentation may be made by tagging or marking with

paint, by photographic records, or by preservation of sales receipts

from nurseries.

The Federal regulations at 30 CFR 816.116(b)(3) (i) through (iii)

and 817.116(b)(3) (i) through (iii) require, in part, that success of

revegetation of shelterbelts be determined on the basis of tree and

shrub stocking and vegetative ground cover and include the requirements

that (1) permit specific or programwide minimum stocking and planting

arrangements shall be specified by the regulatory authority on the

basis of local and regional conditions and after consultation with and

approval by the State agencies responsible for the administration of

forestry and wildlife programs, (2) trees and shrubs counted in

determining such success shall be healthy and have been in place for

not less than two growing seasons, (3) at least 80 percent of the trees

and shrubs used to determine such success shall have been in place for

60 percent of the applicable minimum period of responsibility, and (4)

vegetative ground cover shall not be less than that required to achieve

the approved postmining land use.

The Director finds that North Dakota's revisions of Chapter II,

Sections F and G, concerning the requirements to determine revegetation

success on reclaimed lands developed for use as shelterbelts, are no

less effective than the Federal regulations at 30 CFR 816.116(b)(3) (i)

through (iii) and 817.116(b)(3) (i) through (iii). The

[[Page 36216]]

Director approves these proposed revisions.

ii. Chapter II, Section G, replacement and nonreplacement

shelterbelts. North Dakota proposed to revise Chapter II, Section G to

(1) clarify that the standards in Section G apply to all shelterbelts

that are specified in the reclamation plan as a postmining land use or

as otherwise required as part of the approved permit, and (2) delete

from Section G the discussion of ``replacement'' and ``nonreplacement''

shelterbelts and their associated success standards. North Dakota

explained in the cover letter to its May 11, 1995, revisions, that the

intent of the provision for shelterbelts otherwise required as part of

the approved permit was to give North Dakota the flexibility to

require, by permit condition, that certain shelterbelts not proposed as

part of the postmining land use may be required to meet the standards

in Section G.

As discussed Finding No. e.i above, North Dakota has revised

Chapter II, Sections F and G to require revegetation success standards

for shelterbelts that are no less effective than the Federal

regulations at 30 CFR 816.116(b)(3) and 817.116(b)(3).

The allowance for North Dakota to require, as a condition of permit

approval, shelterbelts that meet the requirements proposed in Chapter

II, Section G, has no counterpart in the Federal regulations. North

Dakota's proposal to require shelterbelts (with the requisite

performance standards for demonstrating success of revegetation) as a

condition of permit approval is not inconsistent with the Federal

regulations at 30 CFR 773.15(c) and 773.17, concerning permit approval

and permit conditions.

Because North Dakota has proposed to require the same success

standards for all areas designated with the postmining land use of

shelterbelts, the Director finds that these proposed revisions in

Chapter II, Section G are no less effective than the requirements for

shelterbelts in the Federal regulations at 30 CFR 816.116(b)(3) and

817.116(b)(3), and approves the proposed revisions.

f. Chapter II, Section H, revegetation success standards for fish

and wildlife habitat. At 30 CFR 934.16(g), OSM required that North

Dakota revise its revegetation document or otherwise amend its program

to require that vegetative ground cover on lands reclaimed to fish and

wildlife habitat equal at least 90 percent of the success standard

(Finding No. 7.a, 54 FR 10141, 10142, March 10, 1989).

North Dakota proposed to revise Chapter II, Section H, concerning

reclaimed lands developed for use as fish and wildlife habitat

according to vegetation type, to require that (1) for woodland and

shelterbelts, the permittee address the requirements specified in,

respectively, Sections F and G (Section F requires that ground cover on

the reclaimed area equal or exceed 90 percent of the approved standard;

Section G requires that density and vigor equal or exceed the approved

standard and erosion be adequately controlled); (2) for grassland, the

ground cover must be equal to or greater than the approved standard;

and (3) for wetland, vegetation zones and dominant species must be

equal to those of the approved standard. North Dakota already required

in Section H, for annual crops, a demonstration that the height of the

standing grain crop or residual cover is equal to or greater than the

approved standard.

The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)

require that the standards for success for ground cover, production, or

stocking shall be considered equal to the approved success standard

when they are not less than 90 percent of the success standard.

The Director finds that North Dakota's revisions of Chapter II,

Section H, concerning the requirement that success standards for fish

and wildlife habitat equal or exceed at least 90 percent of the

approved standards for each vegetation type, are no less effective than

the Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2). The

Director approves the proposed revisions and removes the required

amendment at 30 CFR 934.16(g).

g. Chapter II, Sections F and H, consultation and approval by State

forestry and wildlife agencies. At 30 CFR 934.16(h), OSM required that

North Dakota submit documentation that it has obtained the concurrence

of the appropriate State forestry and wildlife agencies with the

revegetation success standards for lands reclaimed to fish and wildlife

habitat, recreation, shelterbelt, or woodland uses, or shall submit

revisions to its revegetation document and North Dakota Administrative

Code 69-05.2-22-07 or otherwise amend its program to require such

concurrence on a permit specific basis (Finding No. 8, 54 FR 10141,

10143, March 10, 1989).

North Dakota submitted letters of concurrence from the North Dakota

Forest Service and the North Dakota Game and Fish Department, dated,

respectively, April 21, and May 19, 1989. In these letters, the State

agencies concurred with the standards for woodland and fish and

wildlife habitat in Chapter II, Sections F and H, of North Dakota's

revegetation document. In its response to OSM's September 9, 1994,

issue letter, North Dakota explained that these 1989 concurrence

letters are still applicable because, although the original

revegetation document included shelterbelts as part of the woodland

section, the stocking and planting arrangements and success standards

for woodland and fish and wildlife habitat have not been revised since

the letters were obtained. North Dakota refers the permittee to

standards approved by the NRCS for shelterbelts (see Finding No. 2.e.i

above for a discussion of the requirements for shelterbelts).

The Federal regulations at 30 CFR 816.116(b)(3)(i) and

817.116(b)(3)(i) require, for areas to be developed for fish and

wildlife habitat, recreation, shelterbelts, or forest products, that

minimum stocking and planting arrangements shall be specified by the

regulatory authority on the basis of local and regional conditions and

after consultation with and approval by the State agencies responsible

for the administration of forestry and wildlife programs.

Based on the 1989 letters of concurrence from the North Dakota

Forest Service and the North Dakota Game and Fish Department, the

Director finds that North Dakota's revegetation document is no less

effective than the Federal regulations at 30 CFR 816.116(b)(3)(i) and

817.116(b)(3)(i), and removes the required amendment at 30 CFR

934.16(h).

h. Appendix A, augmentation practices. At 30 CFR 934.16(i), OSM

required that North Dakota revise the definition of augmentation

practices in its revegetation document to be consistent with 30 CFR

816.116(c)(4) (Finding No. 9, 54 FR 10141, 10143, March 10, 1989).

In Appendix A, North Dakota proposed to delete the existing

definition of ``augmentation practices'' (which meant those practices

used to reestablish or replace vegetation or make temporary

improvements to obtain bond release) and replace it with a definition

of ``augmentation practices'' meaning those practices which exceed the

commonly used management practices on similar unmined lands in the

surrounding area. North Dakota also revised Appendix A to state that

the use of an augmentation practice on reclaimed lands will reinitiate

the liability period and to provide examples of augmentation practices

including (1) fertilization or irrigation on cropland, hayland, and

pastureland, that is not used as specified in the management plan or

that is used in excessive

[[Page 36217]]

amounts (based on soil tests and historic use), (2) fertilization or

irrigation used to boost production on native grassland, or on

grasslands in fish and wildlife habitat, (3) reseeding native

grasslands, pasturelands, or grasslands in fish and wildlife habitat to

reintroduce the desired species, (4) extensive replanting, plugging, or

addition of soil containing propagules on wetlands, (5) extensive

replanting in woodlands or shelterbelts, (6) any significant surface

modifications which redisturb the topsoil, and (7) any change in land

use that requires a seed mix modification to support the intended land

use.

The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)

provide for the approval of selective husbandry practices, excluding

augmented seeding, fertilization, or irrigation, that would not extend

the period of responsibility for revegetation success and bond

liability, if such practices can be expected to continue as part of the

postmining land use or if discontinuance of the practices after the

liability period expires will not reduce the probability of permanent

revegetation success. Approved practices shall be normal husbandry

practices within the region for unmined lands having land uses similar

to the approved postmining land use of the disturbed area.

The Director finds that North Dakota's proposed definition of

augmentation practices is consistent with the Federal regulations

concerning normal husbandry practices at 30 CFR 816.116(c)(4) and

817.116(c)(4). The Director approves the proposed revisions and removes

the required amendment at 30 CFR 934.16(i).

i. Chapter II, Section C, NRCS consultation regarding methods for

measuring productivity on prime farmlands and approval for yield

determination methods on prime farmlands. At 30 CFR 934.16 (w) and (x),

OSM required that North Dakota revise its revegetation document to

submit evidence of, respectively, (1) NRCS (formerly the Soil

Conservation Service) consultation regarding the approved methodologies

for measuring productivity on prime farmlands and (2) NRCS concurrence

regarding the approved methods for determining yield standards for

prime farmlands (Finding Nos. 28.a and b, 57 FR 807, 823, January 9,

1992).

North Dakota submitted with its revised amendment a December 15,

1994, letter from the NRCS in which the NRCS stated that it had

reviewed and concurred with standards and sampling procedures for

proving reclamation success on prime farmlands that are outlined in

North Dakota's revegetation document. The NRCS identified its Soil Tech

Note 2, dated 1987, as the most current reference guideline concerning

productivity indexes and agreed that the sampling designs are adequate.

The NRCS also stated that the use of small grains to prove production

is applicable in the area because corn or other deep rooting crops are

not generally grown in west and west central North Dakota.

The Federal regulation at 30 CFR 823.15(b)(2) requires, in part,

that prime farmland soil productivity shall be measured using

statistically valid sampling techniques that are approved by the

regulatory authority in consultation with the NRCS. The Federal

regulation at 30 CFR 823.15(b)(6) requires that the reference crop on

which restoration of soil productivity is proven shall be selected from

the crops most commonly produced on the surrounding prime farmland and

that where row crops are the dominant crops grown on prime farmland in

the area, the row crop requiring the greatest rooting depth shall be

chosen as one of the reference crops. The Federal regulation at 30 CFR

823.15(b)(7) requires the NRCS concurrence regarding the approved

methods for determining yield standards for prime farmlands.

Based on the December 15, 1994, NRCS letter to North Dakota, the

Director finds that North Dakota's revegetation document revisions are

no less effective than the Federal regulations at (1) 30 CFR 823.15(b),

concerning consultation and concurrence with the NRCS for prime

farmlands, and (2) 30 CFR 823.15(b)(6), concerning the use of small

grains (spring wheat) rather than corn or other deep rooting crops to

prove production. The Director removes the required amendments at 30

CFR 934.16 (w) and (x).

3. Substantive Revisions to North Dakota's Revegetation Document

Proposed as State Initiatives

a. Chapter II, Section C, demonstration of productivity prior to

bond release on prime farmland. North Dakota proposed to revise Chapter

II, Section C, to require for third-stage (equivalent to the Federal

program's phase II) bond release on prime farmland, that productivity

must be equal to or greater than that of the approved reference area or

standard with 90 percent statistical confidence. This is identical to

the requirement for third-stage bond release on prime farmland in North

Dakota's rule at North Dakota Administrative Code (NDAC) 69-05.2-22-

07(3)(c). The revegetation document at Chapter 11, Section C and North

Dakota's rule at NDAC 69-05.2-22-07(4)(d) require for final or fourth-

stage (equivalent to the Federal program's phase III) bond release on

prime farmland that productivity equal to or greater than the standard

must be demonstrated in each of the last 3 consecutive growing seasons

of the responsibility period. In addition, North Dakota's rule at NDAC

69-05.2-26-05(3)(c) requires that the measurement period for

determining crop production is that specified in NDAC 69-05.2-22-

07(4)(d) for fourth-stage bond release on prime farmland described

above).

The Federal regulations at 30 CFR 800.40(c)(2) require that no part

of a phase II bond shall be released until soil productivity for prime

farmland has returned to the equivalent levels of yield as nonmined

land of the same soil type in the surrounding area under equivalent

management practices as determined from the soil survey performed

pursuant to Section 507(b)(16) of the Act and 30 CFR Part 823. The

Federal regulations at 30 CFR 823.15(b)(3) require that the measurement

period for determining average annual crop production (yield) shall be

a minimum of 3 crop years prior to release of the operator's

performance bond. The Federal regulations at 30 CFR 823.15(b)(5)

require that restoration of soil productivity shall be considered

achieved when the average yield during the measurement period equals or

exceeds the average yield of the reference crop established for the

same period for nonmined soils of the same or similar texture or slope

phase of the soil series in the surrounding area under equivalent

management practices. Therefore, the Federal regulations at 30 CFR

800.40, concerning phase II bond release on prime farmland, and 30 CFR

823.15(b), concerning the measurement for success of productivity on

prime farmland prior to bond release, clearly require a successful

demonstration of productivity using 3 years of data prior to phase II

bond release (equivalent to North Dakota's third-stage bond release).

North Dakota's existing rule at NDAC 69-05.2-22-07(3)(c) and

proposed revision in Chapter II, Section C in its revegetation document

require that a permittee demonstrate productivity on prime farmland at

third-stage bond release. However, North Dakota's existing rules at

NDAC 69-05.2-22-07(4)(d) and 69-05.2-26-05(3)(c) and Chapter II,

Section C in its revegetation document require that the 3-year

measurement period for making a demonstration of productivity occur

prior to fourth-stage bond release. The

[[Page 36218]]

Director finds that North Dakota's rules at NDAC 69-05.2-26-05(3)(c)

and 69-05.2-22-07(3)(c), and its revegetation document at Chapter II,

Section C, concerning the requirement for third-stage bond release on

prime farmland, to the extent that they do not require the permittee to

demonstrate the success of productivity on prime farmland with 3 years

of data, are less effective than the Federal regulations at 30 CFR

800.40 and 823.15. The Director approves the revision proposed in

Chapter II, Section C of the revegetation document that requires prime

farmland productivity to be equal to or greater than that of the

approved reference area or standard with 90 percent statistical

confidence prior to third-stage bond release. However, the Director

also requires that North Dakota further revise Chapter II, Section C in

the revegetation document and its rules at NDAC 69-05.2-26-05(3)(c) and

69-05.2-22-07(3)(c) to require that the permittee demonstrate

restoration of productivity on prime farmland using 3 crop years at

third-stage bond release. OSM recommends that North Dakota then revise

NDAC 69-05.2-22-07(4)(d) to delete the fourth-stage bond release

requirement on prime farmland for successful productivity during the

last 3 consecutive growing seasons.

b. Chapter II, Section E, demonstration of diversity, seasonality,

and permanence prior to fourth-stage bond release on tame pastureland.

North Dakota proposed to revise Chapter II, Section E, to remove

existing discussions concerning the evaluation of reclaimed vegetation

for diversity, seasonality, and permanence on areas developed for use

as tame pastureland. However, North Dakota also proposed to revise

Chapter II, Section E to require that (1) all species used in

determining ground cover must be perennial species not detrimental to

the land use and (2) all species included in the approved seed mixture

must be present at the time of final bond release.

The Federal regulations at 30 CFR 816.111(a)(1) and 817.111(a)(1)

require the permittee to establish on regraded areas and on all other

disturbed areas (except water areas and surface areas of roads that are

approved as part of the postmining land use) a vegetative cover that is

in accordance with the approved permit and reclamation plan and that is

diverse, effective, and permanent. Additionally, the Federal

regulations at 30 CFR 816.111(b)(2) and 817.111(b)(2) require that the

reestablished plant species have the same seasonal characteristics of

growth as the original vegetation. Finally, the Federal regulations at

30 CFR 816.116(a) and 817.116(a) require that the success of

revegetation shall be judged on the effectiveness of the vegetation for

the approved postmining land use, the extent of cover compared to the

cover occurring in natural vegetation of the area, and the general

requirements of Section 816.111.

Because North Dakota proposed that only perennial species can be

used in determining the success of ground cover, North Dakota has

proposed in its revegetation document, in effect, to require an

evaluation of permanence. North Dakota also proposed that all species

included in the approved seed mixture must be present at the time of

final bond release. Because the approved seed mix is designed to attain

the diversity and seasonality required to support the approved

postmining land use, North Dakota has proposed in its revegetation

document, in effect, to require an evaluation of diversity and

seasonality on land reclaimed for use as tame pastureland. Therefore,

although North Dakota proposed deletion of existing discussions

concerning diversity, seasonality, and permanence on tame pastureland,

it also proposed to include requirements for evaluation of diversity,

seasonality, and permanence that are consistent with the Federal

regulations at 30 CFR 816.111(a)(1) and (b)(2), 817.111(a)(1) and

(b)(2), 816.116(a), and 817.116(a).

Therefore, the Director finds that North Dakota's proposed

revisions in Chapter II, Section E of the revegetation document,

concerning the evaluation of diversity, seasonality, and permanence on

land reclaimed for use as tame pastureland, are no less effective than

the Federal regulations at 30 CFR 816.111 (a)(1) and (b)(2), 817.111

(a)(1) and (b)(2), 816.116(a), and 817.116(a), and approves the

proposed revisions.

c. Chapter II, Section E, development of a productivity standard on

tame pastureland using 50 percent of the yield of a suitability group

or soil series most similar to an unrated soil series. North Dakota

proposed to revise Chapter II, Section E to allow estimated yield

values to be used for those soil groups that are not suited for pasture

or hayland. North Dakota proposed that these yield values be derived

using 50 percent of the yield of the suitability group or soil series

most similar to them. Fifty percent of the yield was selected, based on

NRCS recommendations, since these soils are rated non-suitable due to

machinery limitations and erosion rather than productivity potential.

The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)

require that revegetation success standards include criteria

representative of unmined lands to evaluate the appropriate vegetation

parameters of ground cover, production, or stocking.

In response to OSM's September 9, 1994, issue letter, North Dakota

submitted a December 15, 1994, NRCS letter in which the NRCS stated

that it has recommended estimating productivity values for soil groups

not suited for pasture or hayland by using 50 percent of the yield of

the suitability group or soil series most similar to the unrated one.

The NRCS further stated that most of these areas are steep, shallow to

bedrock, or strongly saline and that there are minimal acreage of these

areas in the coal mining region. Finally, the NRCS stated that although

it has not compiled data to support using the 50 percent productivity

level, it believes that using 50 percent of the productivity level of

similar nonrated soils adequately describes production on these sites.

Based on the December 15, 1994, NRCS letter to North Dakota, the

Director finds that North Dakota's proposed method for estimating

yields on unrated soils reclaimed for use as tame pastureland is no

less effective than the Federal regulations at 30 CFR 816.116(a)(2) and

817.116(a)(2) and approves the proposed revision.

d. Chapter II, Section H, classification of wetland vegetation on

reclaimed lands developed for use as fish and wildlife habitat. North

Dakota proposed to revise Chapter II, Section H, concerning wetlands on

land reclaimed for use as fish and wildlife habitat, to delete the

State wetland classification system of temporary, seasonal, semi-

permanent, and permanent, and to add the classification system for

premining assessments described by Stewart and Kantrud (Classes I

through VI). In addition, North Dakota proposed to add the requirement

that the total acreage of postmine wetland, including Class I and II's,

prior to final bond release for the mine must equal the total premine

acreage. North Dakota did not propose to revise any of the standards

applicable to evaluating the success of reclaimed wetland vegetation.

The Federal regulations at 30 CFR 816.111, 816.116, 817.111, and

817.116, concerning requirements for success of revegetation, including

requirements for revegetation success on land reclaimed for use as fish

and wildlife habitat, do not include requirements specific to wetland

vegetation. North Dakota's proposed revisions concerning wetland

classification and replacement go beyond the requirements of, and are

not inconsistent with, the Federal

[[Page 36219]]

regulations at 30 CFR 816.111, 816.116, 817.111, and 817.116.

Therefore, the Director finds that North Dakota's proposed

revisions in Chapter II, Section H of the revegetation document,

concerning wetlands on land reclaimed for use as fish and wildlife

habitat, are no less effective than the Federal regulations at 30 CFR

816.111, 816.116, 817.111, and 817.116, and approves the proposed

revisions.

e. Chapter II, Section I, requirements for revegetation success on

reclaimed lands developed for use as recreation, residential,

industrial, and commercial. North Dakota proposed to revise its

revegatation document by creating a new Section I in Chapter II.

Proposed Section I includes the requirements for success of

revegatation on lands reclaimed for use as recreation, residential, and

industrial and commercial. North Dakota proposed to require on areas

developed for recreation, residential, and industrial and commercial

land uses, for both third and fourth-stage bond release, establishment

of vegetation sufficient to control erosion and documentation showing

that the areas are not contributing suspended solids to streamflow or

runoff outside the permit area. North Dakota proposed (1) a technical

standard for establishment of revegetation, measured with a point

frame, of either 73 percent total cover based on basal hits or 83

percent total cover based on first hits, (2) the requirement that live

cover included in the standard must be perennial species not

detrimental to the land use, and (3) that either standard must be

achieved with 90 percent statistical confidence. North Dakota's rules

at NDAC 69-05.2-22-07(4)(j) require that within 2 years after

completion of grading or soil replacement, the ground cover of living

plants must not be less than required to control erosion on areas to be

developed for recreation, water areas, residential, or industrial and

commercial uses.

For areas developed for residential, or industrial and commercial

land uses, the Federal regulations at 30 CFR 816.116(b)(4) and

817.116(b)(4) require that the vegetative ground cover shall not be

less than that required to control erosion.

For areas developed for use as recreation, the Federal regulations

at 30 CFR 816.116(b)(3) (i) through (iii) and 817.116(b)(3) (i) through

(iii) require, in part, that success of revegetation be determined on

the basis of tree and shrub stocking and vegetative ground cover and

include the requirements that (1) permit specific or programwide

minimum stocking and planting arrangements shall be specified by the

regulatory authority on the basis of local and regional conditions and

after consultation with and approval by the State agencies responsible

for the administration of forestry and wildlife programs, (2) trees and

shrubs counted in determining such success shall be healthy and have

been in place for not less than two growing seasons, (3) at least 80

percent of the trees and shrubs used to determine such success shall

have been in place for 60 percent of the applicable minimum period of

responsibility, and (4) vegetative ground cover shall not be less than

that required to achieve the approved postmining land use.

The Director finds that proposed Chapter II, Section I in North

Dakota's revegetation document, with respect to areas developed for

residential or industrial and commercial land uses, is no less

affective than the Federal regulations at 30 CFR 816.116(b)(4) and

817.116(b)(4).

However, on areas developed for a recreation land use, neither the

North Dakota rule nor its revegetation document require revegetation

success standards for tree and shrub stocking and vegetative ground

cover based on consultation with and approval from the State agencies

responsible for the administration of forestry and wildlife programs.

Therefore, with respect to areas developed for a recreation land use,

the Director finds that the North Dakota rules at NDAC 69-05.2-22-

07(4)(j) and Chapter II, Section I in the revegetation document are

less effective than the Federal regulations at 30 CFR 816.116(b)(3) and

817.116(b)(3). With the exception that Chapter II, Section I does not

include complete requirements for measuring the success of revegetation

on land reclaimed for use as recreation, the Director approves the

revegetation success standards and sampling techniques proposed by

North Dakota in Chapter II, Section I of its revegetation document for

areas developed for recreation, residential, or industrial and

commercial land uses. With respect to areas developed for a recreation

land use, the Director requires that North Dakota (1) revise its rule

at NDAC 69-05.2-22-07(4)(j) and Chapter II, Section I in its

revegetation document to require tree and shrub stocking standards that

(a) have been approved by the State agencies responsible for forestry

and wildlife programs and (b) meet all other requirements for tree and

shrub standards included in 30 CFR 816.116(b)(3), and (2) provide

evidence of consultation with and approval from the State agencies

responsible for forestry and wildlife programs for the ground cover

standard, concerning a recreation land use, proposed in Chapter II,

Section I.

f. Chapter III, Section C, sample design and sample size adequacy.

North Dakota proposed to revise Chapter III, Section C, to (1) require

that the determination of an adequate sample size include an initial

sampling to obtain estimates of the mean and variance of each site type

or reference area; (2) specify a minimum number of samples when hand

sampling to determine (a) total production and cover on native

grassland and tame pastureland, (b) production on cropland, or (c)

total cover; and (3) require that the mean and variance derived from

the initial sampling be used to calculate adequate sample size using

(a) a two-stage sampling procedure, (b) a procedure using the standard

error as a percentage of the mean, or (c) a procedure described for

comparing two different populations (e.g., reference area and reclaimed

area). Each of these procedures for determining sample size are based

on either a normal or binomial distribution of the population when

parametric statistics are used to evaluate the revegetation data

collected from the reclaimed area.

The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)

require that the sampling techniques for measuring revegetation success

shall use a 90-percent statistical confidence interval (i.e., one-sided

test with a 0.10 alpha error).

North Dakota's proposed revisions of Chapter III, Section C,

concerning sample design, are consistent with the Federal regulations

at 30 CFR 816.116(a)(2) and 817.116(a)(2) in that North Dakota has

clearly required that all sampling techniques shall use a 90 percent

statistical confidence level.

North Dakota also proposed to revise Chapter III, Section C,

concerning sample design to state that, in some cases, the sample size

derived from a formula may appear to be unreasonably large due to non-

parametric or non-normal distributions and that North Dakota will

evaluate such cases and establish a maximum sample size.

The distribution of (1) vegetative cover in the arid west and (2)

shrub density throughout the west often do not exhibit normal or

binomial characteristics, and the use of non-parametric statistics may

be appropriate for evaluation of the revegetation data collected from

these reclaimed environment. Because North Dakota's proposed

requirement that all sampling techniques use a 90 percent statistical

confidence level applies whether

[[Page 36220]]

parametric or non-parametric statistics are used to evaluate the data

collected, North Dakota's provision concerning non-parametric

statistics is consistent with the requirements for measuring for

success of revegetation with 90 percent statistical confidence in the

Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2).

Therefore, the Director finds that North Dakota's proposed

revisions of Chapter III, Section C in its revegetation document,

concerning sampling design, are no less effective than the Federal

regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2), and approves the

proposed revisions.

g. Chapter III, Section D, the sampling procedures allowed for

demonstration of productivity of annual crops on cropland and prime

farmland. North Dakota proposed to revise Chapter III, Section D, to

provide methods for the demonstration of production on areas reclaimed

for production of annual crops (cropland and prime farmland). North

Dakota proposed to allow the use of (1) entire field harvest; (2)

combined sampling, where sampling units or strips must be distributed

throughout the entire field and the number of strips needed must be

determined using a sample adequacy formula that reflects 90 percent

statistical confidence; (3) hand sampling, which are limited to areas

where the cropland reference area standard or the NRCS cropland

technical standard with a control area used for climatic correction is

used, and where both the reclaimed and the reference or control areas

are hand sampled in the same manner (the number of samples needed must

be determined using a sample adequacy formula that reflects 90 percent

statistical confidence); or (4) representative strips.

With respect to the use of representative strips, North Dakota

proposed to require at least three representative strips of adequate

size must be established which must reflect the variability in soil

redistribution thickness, landscape forms, and reclamation age

occurring in the larger reclaimed areas they represent. In addition,

each strip must extend across the entire tract they represent and, to

the extent possible considering the above factors, should be equally

spaced across the entire tract. The total acreage of the representative

strips which must be cropped each year must, at a minimum, equal ten

percent of the entire reclaimed tract they represent. Separate

representative strips must be established for each landowner, unless

the landowner agrees that other representative strips having the same

characteristics are adequate to represent his or her reclaimed land. A

map showing the location of the strips must be approved by North Dakota

prior to final selection. North Dakota required that the methods used

to harvest the representative areas must reflect a 90 percent

statistical confidence interval and recommended that the representative

strips be entirely harvested to obtain a single yield value.

North Dakota also submitted a NRCS letter, dated December 15, 1994,

which documented NRCS consultation regarding the proposed sampling

techniques. The NRCS stated that it agreed that the sampling designs

were adequate, but recommended whole-field harvest to eliminate any

question of accuracy.

The Federal regulations at 30 CFR 816.116(a) (1) and (2) and

817.116(a) (1) and (2) require that statistically valid sampling

techniques be included in the approved program and that the sampling

techniques for measuring success shall use a 90-percent statistical

confidence interval (i.e., one-sided test with a 0.10 alpha error). For

prime farmland, the Federal regulations at 30 CFR 823.15(b)(2) require

that soil productivity be measured on a representative sample or on all

of the mined and reclaimed area and that a statistically valid sampling

technique at a 90-percent or greater statistical confidence level shall

be used as approved by the regulatory authority in consultation with

the NRCS (formerly the Soil Conservation Service).

The Director finds that North Dakota's proposed methods for the

demonstration of production on areas reclaimed for production of annual

crops (cropland and prime farmland), including entire field harvest,

combined sampling, and hand sampling, Chapter III, Section D are no

less effective than the requirements of 30 CFR 816.116(a)(2) and

817.116(a)(2).

Because North Dakota (1) proposed criteria for establishment of

representative strips within the reclaimed area that should ensure that

the strips will be representative at a 90-percent statistical

confidence level of the total reclaimed prime farmland bond release

area (cropland and prime farmland), and (2) submitted evidence of

consultation with the NRCS regarding the demonstration of productivity

on prime farmland, the Director finds that the representative strips

method for the demonstration of production on areas reclaimed for

production of annual crops (cropland and prime farmland) is no less

effective than the requirements of 30 CFR 816.116(a)(2), 817.116(a)(2),

and 823.15(b)(2).

Based on the above discussion, the Director approves the proposed

sampling procedures allowed for demonstration of productivity of annual

crops on cropland and prime farmland in Chapter III, Section D of North

Dakota's revegetation document.

h. Chapter III, Section D, sample adequacy requirements for

demonstration of woody plant density. North Dakota proposed to revise

Chapter III, Section D in its revegetation document to require, when

using the quadrat sampling method to measure success of woody plant

density, that randomly placed quadrats be used to obtain density counts

and to recommend that permanent sampling plots be established within

each planting. North Dakota proposed to delete the requirement that

sampling of total density proceed until the coefficient of variation is

less than or equal to 20 percent, and add the requirements that enough

samples must be taken to (1) reflect the population mean with 90

percent statistical confidence and (2) demonstrate that the number of

woody plants established equals or exceeds the approved standard with

90 percent statistical confidence.

The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)

require, in part, that the sampling techniques for measuring success of

stocking shall use a 90-percent statistical confidence interval.

As discussed in Finding No. 2.c above, OSM is approving North

Dakota's proposed requirement that enough samples must be taken to

demonstrate that the number of woody plants established equals or

exceeds the approved standard with 90 percent statistical confidence.

The Director finds that the revisions proposed in Chapter III,

Section D, concerning the sampling procedure used to demonstrate the

success of woody plant density, are no less effective than the Federal

regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) and approves the

proposed revisions.

i. Appendix A, reinforcement interseeding on native grassland as a

normal conservation practice. North Dakota proposed to revise Appendix

A, concerning normal conservation practices on lands reclaimed for use

as native grassland, to allow restricted reinforcement interseeding,

described below, to modify species composition or reestablish certain

species during establishment of the revegetated stand. North Dakota

referenced the NRCS July 14, 1989, Technical Note, ND-12 Rev., entitled

``Guidelines for Grass/Legume Stand Evaluation,'' and used this

guideline to develop the requirements

[[Page 36221]]

for an evaluation of species establishment and the need for

reinforcement interseeding.

North Dakota proposed to require a record of the frequency

measurement of the established plants and that the frequency of species

seeded must indicate that at least 50 percent of the seeded species are

becoming established. A single reinforcement interseeding may be made

prior to year 4 of the bond liability period. At year 4, the permittee

may evaluate the establishment of species. If the permittee can

demonstrate that the revegetated stand has not become established, one

more reinforcement interseeding would be allowed in the spring of year

5. North Dakota proposed to require that any interseeding after year 5

would restart the liability period.

The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)

allows the regulatory authority to select normal husbandry practices if

such practices are expected to continue as part of the postmining land

use or if discontinance of the practices after the liability period

expires will not reduce the probability of permanent revegetation

success. Such practices must be normal husbandry practices within the

region.

In response to OSM's September 9, 1994, issue letter, North Dakota

submitted a copy of the NRCS July 14, 1989, Technical Note, ND-12 Rev.

This document states that, in the case of weak or spotty stands,

reinforcement seeding or spot seeding should be considered during

evaluation of stand establishment. As set forth in Chapter II, Section

D of North Dakota's revegetation document, the revegetation stand would

have to meet the revegetation success standards for production, cover,

diversity, seasonality, and performance during the last 2 consecutive

years of the liability period. Therefore, the permittee would have to

demonstrate prior to bond release that discontinuance of interseeding

would not reduce the probability of permanent revegetation success.

Based on the NRCS document and North Dakota's proposal that only

one interseeding prior to year 4 of the 10 year liability period and

one conditional interseeding in year of the liability period would be

allowed, the Director finds that North Dakota's proposal for

reinforcement interseeding on reclaimed native grasslands is consistent

with the Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)

and approves it.

j. Appendix A, plantings of trees and shrubs on agricultural land

as a normal conservation practice. North Dakota proposed to revise the

discussion of normal conservation practices in Appendix A to include

the voluntary plantings of trees and shrubs on agricultural land at the

request of the landowner or to enhance fish and wildlife habitat as a

normal conservation practice.

There is no provision in the Federal program for the planting of

trees and shrubs on agricultural land at the request of the landowner,

as proposed by North Dakota. The Federal regulations at 30 CFR

816.97(h) and 817.97(h) and North Dakota's rule at NDAC 69-052-13-

08(5)(j) require that a permittee, when the postmining land use is

cropland, and where appropriate for crop-management practices,

intersperse the fields with trees, hedges, or fence rows throughout the

harvested area. The provision for voluntary planting of trees and

shrubs on agricultural land either at the landowner's request or to

enhance fish and wildlife habitat is not inconsistent with the Federal

regulations at 30 CFR 816.97(h) and 817.97(h) and North Dakota's rule

at NDAC 69-052-13-08(5)(j).

The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)

provide for the approval of selective husbandry practices that would

not extend the period of responsibility for revegetation success and

bond liability, if such practices can be expected to continue as part

of the postmining land use or if discontinuance of the practices after

the liability period expires will not reduce the probability of

permanent revegetation success. The term ``normal conservation

practice'' used by North Dakota in its revegetation document means the

same thing as the term ``normal husbandry practice'' used in the

Federal regulations.

The use of field windbreaks, or plantings of trees and shrubs on

agricultural land, is a common agricultural practice in North Dakota.

As discussed above, the planting of trees and shrubs to enhance fish

and wildlife habitat where appropriate for crop management on areas

with a postmining land use of cropland is recognized in the Federal

program as a desirable enhancement of an agricultural land use.

For these reasons, the Director finds that North Dakota's proposed

allowance in Appendix A for the planting of trees and shrubs on

agricultural land as a normal conservation practice is consistent with

the Federal regulations at 30 CFR 816.97(h), 816.116(c)(4), 817.97(h),

and 817.116(c)(4), and approves it.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's responses to

them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the North Dakota program.

a. NRCS. On April 14, 1994, the U.S. NRCS responded with the

following comments (administrative record No. ND-U-09).

With respect to reference areas used to demonstrate success of land

reclaimed for use as native grassland, the NRCS commented that

[l]ong term ungrazed reference areas eventually may lose

integrity in representing characteristic native plant communities.

Such areas eventually tend to become invaded by Kentucky Blue grass,

excess litter accumulates, wood or other dominating overstory may

increase, and species diversity decreases. Grazing and/or fire

historically influenced the character of native prairie ecosystems.

North Dakota's rules at NDAC 69-05.2-01-02 define a ``reference

area'' to mean, in part, a land unit maintained under appropriate

management. North Dakota's revegetation document at Chapter II, Section

D includes the requirements for measuring success of revegetation on

areas reclaimed for use as native grassland. North Dakota requires that

the range condition of the reference area be similar to that of the

corresponding premine range site. North Dakota also recommends that,

because prior to mining disturbance a rancher may have used the land

more intensively than if the goal had been sustained yields for several

years, management practices which will maintain or improve the

condition of the reference area be used during the liability area and

that management of the reference area should be equivalent to that

required for the approved postmining land use of the permit area.

Therefore, because North Dakota's rules and revegetation document

require proper management of the reference area used to demonstrate

success of revegetation on lands reclaimed for use as native grassland,

the Director is not requiring that North Dakota further

[[Page 36222]]

revise the revegetation document in response to this comment.

With respect to production on land reclaimed for use as native

grazingland, the NRCS commented that

[NRCS] production values represent potential for given range

sites and may not be representative of the actual pre-mined yields.

Range condition would influence yields on both the reference area

and pre-mined area.

North Dakota's revegetation document at Chapter II, Section D

requires an evaluation of the range condition, for all range sites and

the reference area, according to the methodology specified by the NRCS.

And as discussed above, North Dakota requires proper management of the

reference area for attainment of the postmining land use; in addition,

the reference area must be representative of the geology, soil, slope,

and vegetation in the permit area. While the permittee may elect to use

either NRCS estimated yield values or actual yield values from the

reference area to determine a productivity standard, North Dakota

requires that the permittee demonstrate restoration of the production

potential of the soils in the permit area. For these reasons, the

Director is not requiring that North Dakota further revise its

revegetation document in response to these comments.

With respect to NRCS pasture and hayland yields, NRCS commented

that

[c]urrently, pasture and hayland yields are under evaluation for

revision. Some yields are apparently too high. Revisions will be

based on available research data.

North Dakota's revegetation document at Chapter II, Section E

requires the use of NRCS estimates yield figures for setting a

technical productivity standard by which the success of revegetation

will be measured on land reclaimed for use as pastureland. North Dakota

also states in its revegetation document at Chapter II, Section B,

concerning data sources, that when new data are published by the NRCS,

updated tables will be forwarded to the mining companies and OSM. The

permittee will therefore be using the most current NRCS estimated

yields to determine any technical standards used in demonstrating the

success of productivity on lands reclaimed for use as tame pastureland.

Where the permittee elects to use a reference area to determine the

productivity standard, the actual yield measurements will be used. For

these reasons, the Director is not requiring that North Dakota further

revise the revegetation document in response to this comment.

On May 22, 1995, the U.S. NRCS responded that it had no comments on

the revised proposed amendment (administrative record No. ND-U-19).

b. Other Federal agencies. The U.S. Mine Safety and Health

Administration (MSHA) responded on March 16, 1994, that the proposed

amendment did not conflict MSHA regulations (administrative record No.

ND-U-04).

The U.S. Fish and Wildlife Service responded on March 29, 1994, and

June 1, 1995, that (1) the proposed amendment was logical and

reasonable and (2) it did not anticipate any significant impacts to

fish and wildlife resources as a result of the proposed amendment

(administrative record Nos. ND-U-07 and ND-U-21).

The U.S. Bureau of Mines responded on April 11, 1994, that it had

no comments on the proposed amendment (administrative record No. ND-U-

08).

The U.S. Rural Economic and Community Development responded on May

23, 1994, that it had no comments on the proposed amendment

(administrative record No. ND-U-20).

The U.S. Agricultural Research Service, Northern Great Plains

Research Laboratory, responded on May 30, 1994, that it had no comments

on the proposed amendment (administrative record No. ND-U-22).

The U.S. Army Corps of Engineers responded on June 5, 1995, that it

found the proposed amendment to be satisfactory (administrative record

No. ND-U-24).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that North Dakota proposed to make in its

amendment pertain to air or water quality standards. Therefore, OSM did

not request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record No. ND-U-03. EPA

responded on March 21, 1994, that it had no comments on the proposed

amendment (administrative record No. ND-U-06).

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (administrative record No.

ND-U-03). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves, with certain

exceptions and additional requirements, North Dakota's proposed

amendment as submitted on February 17, 1994, and as revised and

supplemental with additional explanatory information on December 21,

1994, and May 11, 1995.

With the requirement that North Dakota further revise its rules

and/or the revegetation document, the Director approves, as discussed

in Finding No. 3.a, Chapter II, Section C, the requirements to

demonstrate the success of productivity prior to third-stage bond

release on land reclaimed for use as prime farmland, and Finding No.

3.e, Chapter II, Section I, the requirements to demonstrate the success

of revegetation on areas developed for recreation, residential, or

industrial and commercial land uses.

The Director approves, as discussed in: Finding No. 1, the proposed

revisions in the revegetation document not otherwise specifically

discussed, Finding Nos. 2.a. through 2.i, various revisions in the

revegetation document made in response to required amendments; Finding

No. 3.b, Chapter II, Section E, the required evaluation of reclaimed

vegetation for diversity, seasonality, and permanence on areas

developed for use as tame pastureland; Finding No. 3.c, Chapter II,

Section E, the use of estimated yields to develop a productivity

standard for soils that are not rated for use as pastureland on land

reclaimed for use as tame pastureland; Finding No. 3.d, Chapter II,

Section H, wetland classification and replacement requirements; Finding

No. 3.f, Chapter III, Section C, sample design and sample size

adequacy; Finding No. 3.g, Chapter III, Section D, the use of entire

field harvest, combined sampling, hand sampling, or representative

strips as procedures for demonstrating productivity on land reclaimed

for use as cropland or prime farmland; Finding No. 3.h, Appendix A, the

use of restricted interseeding as a normal conservation practice on

land reclaimed for use as native grassland; and Finding No. 3.i,

Appendix A, the voluntary plantings of trees and shrubs on agricultural

land at the request of the landowner or to enhance fish and wildlife

habitat as a normal conservation practice.

The Federal regulations at 30 CFR Part 934, codifying decisions

concerning the North Dakota Program, are being

[[Page 36223]]

amended to implement this decision. This final rule is being made

effective immediately to expedite the State program amendment process

and to encourage States to bring their programs into conformity with

the Federal standards without undue delay. Consistency of State and

Federal standards is required by SMCRA.

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

934.16 that, within 60 days of the publication of this final rule,

North Dakota must either submit a proposed written amendment, or a

description of an amendment to the proposed that meets the requirements

of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is

consistent with North Dakota's established administrative or

legislative procedures.

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the North Dakota program, the Director will recognize only

the statutes, regulations and other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by North Dakota of only

such provisions.

VI. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each such program is drafted and promulgated

by a specific State, not by OSM. Under sections 503 and 505 of SMCRA

(30 U.S.C. 1253 and 12550) and the Federal regulations at 30 CFR

730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 934

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 6, 1995.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 934--North Dakota

1. The authority citation for Part 934 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 934.15 is amended by adding paragraph (u) to read as

follows:

Sec. 934.15 Approval of amendments to the North Dakota regulatory

program.

* * * * *

(u) With the exceptions of Chapter II, Section C, to the extent

that it allows the demonstration of productivity with less than 3 years

of crop data prior to third-stage bond release on lands reclaimed for

use as prime farmland; and Chapter II, Section I, to the extent that it

does not include complete requirements for measuring the success of

revegetation on land reclaimed for use as recreation; revisions to

North Dakota's policy document entitled ``Standards for Evaluation of

Revegetation Success and Recommended Procedures for Pre- and Postmining

Vegetation Assessments,'' as submitted to OSM on February 17, 1994, and

as revised and supplemented with explanatory information on December

21, 1994, and May 11, 1995, are approved effective July 14, 1995.

3. Section 934.16 is amended by revising the introductory

paragraph, removing and reserving paragraphs (b) through (i), (w), and

(x), and adding paragraphs (aa) and (bb) to read as follows:

Sec. 934.16 Required program amendments.

Pursuant to 30 CFR 732.17(f)(1), North Dakota is required to submit

to OSM by the specified date the following written, proposed program

amendment, or a description of an amendment to be proposed that meets

the requirements of SMCRA and 30 CFR Chapter VII and a timetable for

enactment that is consistent with North Dakota's established

administrative or legislative procedures.

* * * * *

(aa) By September 12, 1995, North Dakota shall revise Chapter II,

Section C in its revegatation document and its rules at NDAC 69-05.2-

22-07(3)(c) and 69-05.2-26-05(3)(c) to require that, prior to third-

stage bond release on land reclaimed for use as prime farmland, the

permittee demonstrate restoration of productivity using 3 crop years.

(bb) By September 12, 1995, North Dakota shall revise Chapter II,

Section I it its revegetation document and its rule at NDAC 69-05.2-22-

07(4)(j) to require tree and shrub stocking standards that meet all

requirements in 30 CFR 816.116(b)(3), including approval by the

appropriate State agencies, on land reclaimed for use as recreation.

North

[[Page 36224]]

Dakota shall also provide documentation of consultation with and

approval from the appropriate State agencies for the ground cover

standard in chapter II, Section I on land reclaimed for use as

recreation.

[FR Doc. 95-17166 Filed 7-13-95; 8:45 am]

BILLING CODE 4310-05-M